President Obama violated the Constitution when he circumvented the Senate to fill three vacancies on the National Labor Relations Board (“NLRB”) in January 2012. The U.S. Court of Appeals for the D.C. Circuit ruled that the President’s appointments were invalid from the inception for two reasons: i) the appointments were not made during “the Recess” of the Senate; and ii) the vacancies did not “happen” during “the Recess.” Therefore, the President did not have the constitutional authority to make these recess appointments to the NLRB.

The NLRB is a five-member board that requires at least a three-member quorum to act. The decision renders the President’s appointment of Sharon Block, Richard Griffin, and Terrence Flynn (who resigned after his appointment) invalid. This leaves Chairman Mark Pearce as the only properly installed member of the NLRB and effectively obviates the Board’s power to act because it is without a quorum.

Thompson Coburn LLP | One US Bank Plaza | St. Louis, MO 63101 President Obama's NLRB Recess Appointments Ruled Unconstitutional by Federal Appeals Court President Obama violated the Constitution when he circumvented the Senate to fill three vacancies on the National Labor Relations Board (“NLRB”) in January 2012. The U.S. Court of Appeals for the D.C. Circuit ruled that the President’s appointments were invalid from the inception for two reasons: i) the appointments were not made during “the Recess” of the Senate; and ii) the vacancies did not “happen” during “the Recess.” Therefore, the President did not have the constitutional authority to make these recess appointments to the NLRB. The NLRB is a five-member board that requires at least a three-member quorum to act. The decision renders the President’s appointment of Sharon Block, Richard Griffin, and Terrence Flynn (who resigned after his appointment) invalid. This leaves Chairman Mark Pearce as the only properly installed member of the NLRB and effectively obviates the Board’s power to act because it is without a quorum. The decision also threatens the validity of hundreds of NLRB decisions issued over the past year, as the D.C. Circuit’s ruling means that the NLRB has lacked a quorum since January 3, 2012. Under the U.S. Supreme Court’s 2010 decision in New Process Steel, Board decisions issued when the NLRB lacks a three-member quorum are invalid. Undaunted, Chairman Pearce responded to the court ruling by issuing a statement that the NLRB would continue its “important work.” The White House also indicated that the D.C. Circuit’s ruling would likely be challenged. Although the D.C. Circuit’s ruling is the first appellate decision regarding the validity of the President’s NLRB recess appointments, cases raising the same issue are currently pending before other circuits. Given the importance of the issue, it is anticipated the case will be taken up by the U.S. Supreme Court. In fact, the D.C. Circuit’s logic would render invalid manyprior recess appointments by both Republican and Democratic presidents; the case therefore presents a critical issue regarding the separation of powers between the executive and legislative branches. Thompson Coburn will continue to keep you advised of any developments. If you have questions regarding the above-referenced decision, or other labor or employment issues, please contact your Thompson Coburn attorney or a member of our Labor and Employment Group. Timothy J. Sarsfield 314-552-6432 tsarsfield@thompsoncoburn.com Clifford A. Godiner 314-552-6433 cgodiner@thompsoncoburn.com Charles M. Poplstein 314-552-6095 cpoplstein@thompsoncoburn.com Hope K. Abramov 314-552-6496 habramov@thompsoncoburn.com Michael W. Duffee 312-580-2218 mduffee@thompsoncoburn.com Arthur B. Sternberg 312-580-2235 asternberg@thompsoncoburn.com Joyce M. Pratt 314-552-6319 jpratt@thompsoncoburn.com Thompson Coburn LLP Chicago | St. Louis | Southern Illinois | Washington, D.C. www.thompsoncoburn.com This newsletter is intended for information only and should not be considered legal advice. If you desire legal advice for a particular situation you should consult an attorney. The ethical rules of some states require us to identify this as attorney advertising material. The choice of a lawyer is an important decision and should not be based solely upon advertisements

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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